Citation Nr: 1321175 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 09-49 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for carpal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty service from September 1981 to September 1985. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio, which denied the Veteran's claim of entitlement to service connection for carpal tunnel syndrome. The Board notes that a portion of the Veteran's records are contained on the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center ("AMC") in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The Veteran advances at least two theories in support of his claim of entitlement to service connection for carpal tunnel syndrome. In an April 2010 brief, he wrote that he has carpal tunnel syndrome as a result injuries sustained in 1982 when he was "severely injured in a road march while in formation on the way to advance training in the army." Alternatively, he avers that the condition developed as a result of the repetitive hand movements he was required to perform as part of his military occupational specialty ("MOS") as a single channel radio operator. See brief, May 2013. After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to adjudication of the claim. As an initial matter, review of the Veteran's DD 214 indeed shows that his MOS was that of a single channel radio operator. However, review of the service treatment records reveals no complaints of, treatment for, or a diagnosis of a hand or wrist injury. There is also no probative evidence that the Veteran was diagnosed with carpal tunnel syndrome at any time during the one-year period following separation from service. Although there is no evidence of record demonstrating a current diagnosis of carpal tunnel syndrome, review of the claims folder shows that in a letter dated October 2010, the Veteran referred to treatment he received for carpal tunnel syndrome in 2009 at the Louis Stokes Cleveland VA Medical Center ("VAMC"). However, it appears that these reports are not of record and there is no indication that any attempt was made to obtain them. In this respect, although the Board again observes that there are no service treatment records to support the Veteran's claim of having sustained an injury to his wrists during service, it finds that the Veteran is competent to report an in-service injury, as well as resultant pain both during and after service, even though service connection has not been established. See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (the United States Court of Appeals for Veterans Claims held that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) (the United States Court of Appeals for the Federal Circuit explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis). The Veterans Claims Assistance Act of 2000 ("VCAA"), Public Law No. 106-475, 114 Stat. 2096 (2000), states that VA has a duty to assist claimants in substantiating their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Here, because there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the [V]eteran's service," but there is "insufficient competent medical evidence on file for the Secretary [of VA] to make a decision on the claim," a VA examination and opinion as to whether the Veteran has a current diagnosis of carpal tunnel syndrome (or has been diagnosed with carpal tunnel syndrome at any time during the pendency of this appeal) is warranted. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(1). The requirement under the VCAA for warranting a VA examination, that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In addition, it appears that the most recent VA treatment reports of record are dated August 2008. Where VA has constructive or actual knowledge of the availability of pertinent reports in its possession, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by the claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record."). As records in the possession of VA are deemed to be constructively of record, while the case is in REMAND status, an attempt should be made to obtain updated treatment reports. Accordingly, the case is REMANDED for the following action: 1. Obtain all available VA treatment records since August 2008 and associate with the claims folder or in Virtual VA. A specific request should also be made for any treatment records for carpal tunnel syndrome including any EMG/NCS testing beginning in 2009 from Louis Stokes Cleveland VA Medical Center. Any negative response must be noted. 2. Following completion of the above, schedule the Veteran for an examination with an appropriate, qualified examiner to obtain an opinion as to whether the Veteran has a diagnosis of carpal tunnel syndrome (either currently or at any time during the pendency of this appeal) and whether it is related to active duty service. The claims folder and a copy of this REMAND must be provided to the examiner for review of pertinent documents therein in conjunction with the examination and the examiner must note that the claims folder has been reviewed. Any and all tests or studies deemed necessary should be performed and all clinical findings should be reported in detail. The examiner must also elicit a history of the Veteran's reported carpal tunnel syndrome symptoms both during and since service and note that, in addition to the medical evidence of record, the Veteran's lay statements have also been considered in the opinion. (a.) The examiner is requested to provide an opinion as to whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of at least 50 percent), or unlikely (i.e., a probability of less than 50 percent) that the Veteran has carpal tunnel syndrome (or a chronic disability of the wrists) that began during service or is related to some established event, injury or disease during service. (b.) The clinician is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If, for any reason, the clinician is unable to offer an opinion without resorting to speculation, this should be noted and thoroughly explained in the report, along with a rationale for such conclusion. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).